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Laying down the limits of ‘flexibility’

A new buzz-word has joined the lexicon of Union jargon. Rory Watson explains how it might work

European Voice

1/15/97, 5:00 PM CET

Updated 4/12/14, 1:49 AM CET

EVERY so often a new word, encapsulating highly complex concepts in a few short syllables, comes to dominate the Union debate.

Prominent examples in recent years have included “widening” and “deepening” and, perhaps the most famous of them all, “subsidiarity”. Now their ranks have been joined by “flexibility”.

The Dutch EU presidency sees the term as one which could reconcile very different models of the Union and provide the key to a successful outcome to the Intergovernmental Conference on treaty reform.

Its enthusiasm is not surprising. The principle is attracting support from the engine of European integration (the Franco-German alliance), from the Union’s most critical member (the UK) and from the guardian of the Union’s conscience (the European Commission).

On the surface, the suggestion that different degrees of cooperation between EU members should be possible flies in the face of the traditional orthodox view that all policies should be implemented by all member states equally.

But the reality is that the Union has always been far readier to accommodate national differences in practice than ithas declared itself willing to accept in principle.

The most obvious examples of this have been the various transition periods new member states have been granted to phase in particularly onerous policies. The concept has even been extended to existing countries, allowing the more reluctant extra time to introduce EU-wide measures such as telecoms liberalisation.

Other high-profile examples were introduced by the Maastricht Treaty, which gave Denmark opt-outs from a single currency and defence issues, and also protected the UK from participating in economic and monetary union and many areas of Union social legislation.

But other policy differences are also tolerated. Member states may already apply more stringent environmental standards than EU norms; introduce,in certain circumstances, protective commercial measures; or restrict imports on grounds of public morality, policy or security.

The Schengen Convention, in whichup to 13 Union members are working together in a bid to abolish internal border controls, and, in the defence field the Western European Union, are prominent examples of differentiated intergovernmental cooperation between Union countries. The concept is even implemented in cooperative industrial ventures such as Airbus in which some, but not all, EU member states are involved.

Although the idea of flexibility is not new, up until now it has been applied on an ad hoc, pragmatic basis.

But with the prospect of Union membership expanding dramatically in the coming years, there is growing pressure to embed it more formally in the revised treaties.

Failure to do so, coupled with an inability to reduce the number of instances where decision-making rests onunanimity, would, it is widely feared, lead to institutional immobility.

The point was clearly made by the Commission in its initial opinion to the IGC early last year when it formally placed flexibility on the negotiating table as one of the reforms needed to prepare the EU for enlargement.

“The European Union must not be forever bound to advance at the speed of its slowest members. This is even more true in an enlarged Community,” it noted, referring to the need for “organised flexibility”.

But it also categorically rejected any drift towards a “pick-and-choose Europe”. Such a suggestion, it insisted, “flies in the face of the common European project and the links and bonds which it engenders”.

At the outset of the debate,the Commission proposed four principles designed to ensure that flexibility would not harm the unity ofthe EU.

It warned that the concept should be compatible with the objectives of the Union and consistent with its institutional framework, must safeguard the single market and accompanying policies, and provide an opportunity for other member states which were willing and able to join in an initiative launched by a smaller group at any time.

The concept, which they described as “enhanced cooperation”, was originally thrown into the IGC melting-pot in December 1995 by French President Jacques Chirac and German Chancellor Helmut Kohl in their traditional pre-summit letter to EU colleagues.

They envisaged a general treaty clause which would allow those member states with the will and ability to develop closer cooperation to do so. The concept was given a further boost last October when French and German Foreign Ministers Hervé de Charette and Klaus Kinkel sent a joint six-page letter to the Irish EU presidency setting out in greater detail how the principle might operate.

This recognised that varying flexibility arrangements would be required for the different pillars of Community policies, common foreign and security policy and justice and home affairs.

The most detailed scenario of how the principle might be applied has come from the Portuguese government, in a paper tabled shortly before last month’s European summit which suggested that all Union governments would be involved in triggering flexible cooperation, on the basis of a proposal tabled either by the Commission or by half their number.

Such cooperation would have to involve at least two-thirds of the member states, be consistent with the EU’s objectives, avoid any policy distortions and contain an assessment of its impact on the Union as a whole.

Normal EU voting rules would apply to those countries involved in the enhanced cooperation exercise, while administrative costs would be covered by the Union budget although any operational expenses (particularly CFSP peacekeeping activities) would be met by the participating member states themselves.

While flexibility would be more widely allowed in the Union’s two intergovernmental pillars, its use in the purely Community pillar would be strictly limited and specifically excluded from common policies, from the internal market and ancillary programmes, and from EU citizenship.

Although possible in areas where member states had not transferred any competence to the Union, such flexibility would not be allowed in cases where it would introduce discrimination between member states and their citizens, restrict the free movement of people, goods, services or capital, or upset the general running of the EU.

But despite widespread recognition of the need for greater flexibility, many strong reservations remain.

Some of the Union’s smaller member states fear it could herald a directoire of their larger brethren from which they would either be excluded or would continuously have to run after.

Governments are also divided over how the issue should be approached tactically.

Some argue it should be tackled last in the IGC negotiations and used as a safety valve in case moves to more widespread majority voting flounder. Others maintain it is so crucial to the EU’s future that all possibilities and ramifications should be explored now a view shared by the Commission, which is currently preparing its own more detailed written input into the debate.

For the moment, the issue still raises more questions than answers. While there is general acceptance that the Comm-ission and the European Court of Justice would be involved in any implementation of the principle, it is unclear whetherthe European Parliament would be represented by all MEPs or only by those from the countries concerned.

Some worry that the concept would lead to a bewildering maze of different cooperative ventures in the Union. But a more fundamental concern among those unenthusiastic about the idea is that it might be used by a small group of countries largely made up of the six founding members to construct a tighter knit group from which less enthusiastic states would be, de facto, excluded.

In one of his lighter moments, former Commission President Jacques Delors challenged the public to come up with a short, workable definition of subsidiarity.

Many versions were submitted, but none established itself as a standard description hardly surprising given that the concept has been used in such differing ways in the US and German constitutions, and even by the Catholic church.

The challenge now facing EU governments is not so much to devise a definition as a system for applying the principle of flexibility which will prevent the Union stagnating or unravelling as it prepares to expand eastwards.